In a rollercoaster ride for counties nationally, the EPA again issues a Waters of the United States (WOTUS) final rule.
Earlier this year the Supreme Court of the United States greatly curtailed the EPA’s ability to police pollution discharged into certain wetlands. The ruling outlined that “wetlands can only be regulated under the Clean Water Act if they have a ‘continuous surface connection’ to larger, regulated bodies of water.” (AP) This upends the “significant nexus” standard outlined by now-former Justice Kennedy 17 years ago.
Following that ruling, the EPA and the Army Corp of Engineers were required to amend their previous WOTUS final rule, which was issued in January 2023.
To conform with the Supreme Court’s decision in Sackett, the Final WOTUS Rule revises the January 2023 Rule by eliminating references to the “significant nexus” test, amending the definition of “adjacent” and removing interstate wetlands from the definition of WOTUS. The Final WOTUS Rule is significantly narrower in scope than the January 2023 Rule, meaning that CWA jurisdiction extends to less county infrastructure than before. . . .
The Final WOTUS Rule took effect on September 8, 2023. Notably, EPA and the Army Corps did not publish a proposed version of the Final WOTUS Rule, meaning that there was no opportunity for public comment.
Given the lack of public comment and the failure to define “relatively permanent” or “continuous,” among other issues, the Final WOTUS rule may face legal challenges, which could result in regulatory uncertainty for counties.
